Why international prison transfers make sense

6 November 2011 — 5:00pm

Being jailed far from home can have a psychological impact, David Biles writes.

At the last official count there were 565 Australians in jails around the world, not counting the 14-year-old Australian boy whom we have all been reading about in Bali. Fewer than half of the 565 are actually serving jail sentences imposed by the courts, the remainder being held in custody pending investigation or court appearance. Even though the total sounds precise, it is probably an under-estimate for reasons which will become clear.

Australians are enthusiastic overseas travellers and a small proportion of them end up behind bars in foreign countries, but Australia also receives each year a large number of overseas visitors and a small proportion of them also end up in our jails. For a variety of reasons it is much more difficult to obtain an estimate of the number of foreign citizens there are in our jails than it is to find a similar figure for Australians in foreign jails.

Whatever the exact figures these two groups probably come close to cancelling each other out, and therefore it may not be seen as a cause of concern. That would be fair enough were it not for the fact that within both groups there are some individual prisoners whose suffering is much greater than intended by the jail sentence due to differences between home and abroad in language, diet, hygiene and health care. For these particular prisoners the jail sentence in a foreign country can mean dramatic damage to physical or mental health as well as despair brought about by cultural and linguistic isolation. In extreme cases a jail sentence in a foreign country can become a death sentence as the individual prisoner simply cannot cope. We have seen this recently with applicants for refugee status in detention centres.

To avoid this sort of tragedy, and for many other practical and humanitarian reasons, a number of nations around the world have introduced schemes for the international transfer of foreign prisoners which would, in closely defined circumstances, allow some of these prisoners to serve a part of their sentences in their home nations.

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This is a subject that can be quite controversial, as is shown by this true story. In July 1992 I wrote a short paper on international transfers for the Australian Institute of Criminology which rather tamely concluded by suggesting that there should be more discussion and debate about this subject. To my surprise, a few days later the then minister for justice, Michael Tate, who was the minister responsible for the institute at that time, rang me suggesting that this was an outrageous proposal that would never happen.

A year or two later I was invited to appear before the House of Representatives Legal and Constitutional Committee, a potentially daunting experience. However, I was treated with respect and enjoyed the wide-ranging discussion which lasted just over an hour. A few years later again, both houses passed the International Transfer of Prisoners Act 1997, shortly after which parallel legislation was passed by all states and territories.

This legislative basis meant that Australia was now able to negotiate treaties with other nations that give effect to international transfers. Australia became a signatory to the Council of Europe Convention on the Transfer of Sentenced Persons and also negotiated bilateral treaties with a number of nations in the Asia-Pacific region, so that there are now over 60 nations with whom it is legally possible for transfers to take place.

It is still the case, however, that among our neighbours, Malaysia and New Zealand continue to oppose international transfers, and the proposed treaty with Indonesia continues to be under negotiation. These three nations are particularly significant as they are holding a number of Australians in their jails, and we are holding significant numbers of their citizens in our jails.

It has been suggested that New Zealand does not want to encourage its countrymen in our jails to come home as, if that happened, they would have to carry the costs. It is also the case that some New Zealand prisoners in our jails have told me that, even if we had a treaty, they would not apply as they would not like their families and friends to know that they were in custody.

There are small differences in the details of the treaties, but all require that only convicted offenders with no appeals pending and with at least one year to serve may apply for transfer and each of the relevant governments must agree. The differences largely relate to the proportion of the sentence that must be served before the prisoner may apply. Most treaties also require that the sentence originally imposed must continue to be enforced, with limited provision being made for sentences to be converted to conform with the expectations of the receiving nation.

The first transfers in or out of Australia occurred in late 2002. Since then a total of 63 foreign citizens have been transferred to ten different nations, and a total 15 Australians have been transferred back to Australia from Thailand, Spain, Hong Kong, Britain and the United States. It has been estimated by the Productivity Commission that each transfer out of Australia represents a saving of around $100,000 each year, so it is clear that the program has been cost-effective for Australia.

Earlier this year, a further 45 applications for transfer out of Australia, and 39 applications for transfer to Australia, were under active consideration, so it is safe to assume that the numbers will increase in both categories, and the financial balance will continue to be in our favour, even though the receiving state or territory pays for the actual transfer costs.

It is good to know that this small program is working well and it is also saving us money.